Frequently Asked Questions

If you are not a Canadian citizen or a permanent resident, within the meaning of the Immigration and Refugee Protection Act (i.e., a person who has been ordinarily resident in Canada for not more than one year after the time at which he/she first became eligible to apply for Canadian citizenship), then you are a non-Canadian and must comply with the provisions of the Investment Canada Act.

For the purposes of the Act, a non-Canadian includes any entity that is not controlled or beneficially owned by Canadians.

If you are a non-Canadian and you propose to establish a new Canadian business or to acquire an existing Canadian business, then you must either file a Notification or an Application for Review of the investment unless a specific exemption applies. (s.10)

If you are a non-Canadian then you must file a notification each and every time you commence a new business activity in Canada and each time you acquire control of an existing Canadian business where the establishment or acquisition of control is not a reviewable transaction.

A Notification must be filed no later than thirty days after the implementation of the investment.

1. An investment is reviewable if there is an acquisition of a Canadian business and the value, calculated in the manner prescribed in the Investment Canada Regulations, of the Canadian business being acquired equals or exceeds the relevant threshold under the Investment Canada Act. Different thresholds for review apply in respect of:

1. Private sector WTO investments
2. State-owned enterprise WTO investments
3. Non-WTO investments and Investments in a cultural business

In general, for acquisitions of control of a Canadian business that is publicly traded, the enterprise value of the assets is calculated as the market capitalization of the entity, plus its total liabilities excluding its ordinary course liabilities, minus the entity's cash and cash equivalents.

The enterprise value for a Canadian business that is not publicly traded is calculated as its total acquisition value, plus its total liabilities excluding its ordinary course liabilities, minus its cash and cash equivalents.

The enterprise value of a Canadian business that is acquired through an asset acquisition is calculated as its total acquisition value, plus the assumed liabilities, minus its cash and cash equivalents. These are determined based on the transaction documents that are used to implement the investment.

For specific details consult sections 3.3, 3.4 and 3.5 of the Investment Canada Regulations.

See Dual Filing Requirements.

Every effort is made to process applications for review as quickly as possible. Under the Act, the Minister has 45 days to determine whether or not to allow the investment. The Minister can unilaterally extend the 45 day period by an additional 30 days by sending a notice to the investor prior to the expiration of the initial 45 day period. Further extensions are permitted if both the investor and the Minister agree to the extension. If no approval or notice of extension is received within the applicable time then the investment is deemed approved. It is not unusual for the Minister to extend the initial 45 day review period by an additional 30 days to permit full consideration of the investment. In the case of investments in cultural businesses, the review will usually require at least 75 days to complete. (ss.21, 22, 23)

Generally, a reviewable investment may not be implemented prior to the investor having received a decision from the Minister that the investment is of "net benefit" to Canada. There are three exceptions:

1. Where the Minister is satisfied that a delay in implementing the investment would result in undue hardship to the investor or would jeopardize the operations of the Canadian business and the Minister has sent a notice to the investor permitting implementation of the investment prior to completion of the review process;
2. Where the investment is implemented as the result of an acquisition of control of a corporation incorporated outside of Canada. Pursuant to Canada's international commitments, indirect acquisitions by or from WTO investors are not reviewable; and
3. Where the investment is not normally reviewable, but the Government exercises its authority by Order-in-Council to review the investment because the investment involves a Schedule IV business activity (cultural heritage or national identity).

In determining whether an investment is of "net benefit", the Minister will consider the following factors:

1. the effect on the level of economic activity in Canada, on employment; on resource processing; on the utilization of parts and services produced in Canada and on exports from Canada;
2. the degree and significance of participation by Canadians in the Canadian business or new Canadian business and in any industry or industries in Canada;
3. the effect of the investment on productivity, industrial efficiency, technological development, product innovation and product variety in Canada;
4. the effect of the investment on competition within any industry in Canada;
5. the compatibility of the investment with national industrial, economic and cultural policies; and
6. the contribution of the investment to Canada's ability to compete in world markets.

The investor should address each of these factors and provide supporting documentation and financial data when submitting an application for review. Depending upon the nature of and the circumstances surrounding the investment, some of the above factors will be given more weight than others. The more specific the investor's plans and/or undertakings which address the above factors, the greater the likelihood a speedy approval will be obtained.

If the Minister advises that he/she is not satisfied that the investment represents a "net benefit" to Canada, the Act provides an opportunity for the investor to make additional representations and undertakings which would demonstrate the "net benefit" of the investment. Ultimately, if the Minister remains unsatisfied, a notice will be sent to the investor advising of the Minister's decision and the investor will be prohibited from implementing the investment or if the investment has already been implemented the investor will be required to divest itself of the investment. (ss. 23, 24)

An investor may seek an opinion from the Minister or Director of Investments with respect to any matter of interpretation of the Investment Canada Act. Once an opinion is provided the opinion is binding upon the Minister and the Director for so long as the material facts on which the opinion was based remain substantially unchanged. Opinions are generally sought in respect to the status of an individual or entity as a Canadian, general questions of interpretation, and whether or not there are grounds for an early implementation of the investment. (s. 37)

While other federal government departments and provincial governments are regularly consulted during the review process, representations are not solicited from any other persons. However, where unsolicited representations are received that could have an adverse bearing on the determination of net benefit, applicants will be advised of the substance of those representations and given an opportunity to respond to them. The identity of persons making third party representations will not be disclosed to the applicant. Information provided to the Government by the applicant will not be divulged to a third party intervenor without the consent of the applicant.

Where relevant to the factors used in the determination of net benefit, the Minister will be advised both of any outside representations made with respect to an investment and of any response to those representations made by the applicant.

The Investment Canada Act contains very rigid confidentiality provisions. All information received by Industry Canada and its officials in relation to an investor or a Canadian business is treated as privileged and confidential information and may not be disclosed except in relation to the administration of the Act or with the consent of the parties to whom the information pertains. The confidentiality provisions are meant to encourage investors to share information with the appropriate Industry Canada officials to make the review process more efficient for all parties and to allow a provider of information to be secure in the knowledge that the sensitive business information provided will not be misused or indiscretely communicated.

Further information may be obtained by contacting:

Industry Canada, Investment Review Division in Ottawa at 343-291-1887

Or you may write to us at:

235 Queen Street, Room 400B East Tower
C.D. Howe Building
Ottawa, Ontario
K1A 0H5
Fax: 343-291-2469
Email: ic.investmentcanada-investissementcanada.ic@canada.ca